Miguel Angel Gonzalez v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00589-CR
Miguel Angel GONZALEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-5792
Honorable Janna K. Whatley, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 1, 2003

DISMISSED FOR LACK OF JURISDICTION

Miguel Angel Gonzalez ("Gonzalez") appeals his conviction for aggravated assault with a deadly weapon. The trial court imposed sentence on July 7, 2003. Because Gonzalez did not file a motion for new trial, the notice of appeal was due to be filed August 6, 2003. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due in this court on August 21, 2003. Tex. R. App. P. 26.3. Gonzalez filed notice of appeal on August 7, 2003. Gonzalez did not file a motion for extension of time.

On August 29, 2003, we ordered Gonzalez to show cause why his appeal should not be dismissed for want of jurisdiction. In response to our order, Gonzalez's counsel acknowledged that the notice of appeal was not timely filed and that a motion for extension of time to file a notice of appeal was not filed. Gonzalez counsel states "that this appeal should not be dismissed for lack of jurisdiction due to him being on vacation and out of town. . . ."

A timely notice of appeal is necessary to invoke this court's jurisdiction. An appellate court may extend the time to file a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, a party files the notice of appeal in the trial court, and, within the same period, files a motion in the appellate court reasonably explaining the need for an extension of time. See Tex. R. App. P. 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Olivo, 918 S.W.2d at 522. Gonzalez's notice of appeal was untimely filed. Gonzalez did not file a motion for extension of time.

We dismiss the appeal for lack of jurisdiction. Olivo, 918 S.W.2d at 526; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating an out-of-time appeal from felony conviction may be sought by filing writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07).

PER CURIAM

DO NOT PUBLISH